Judgment for the plaintiff in the sum of $267,662.83.

The defendant is to pay the plaintiff's costs of the proceedings.

TORTS - NEGLIGENCE - Personal injury - liability of hospital for actions of a misbehaving patient - damages

Civil Law (Wrongs) Act 2002 (ACT) ss 43, 44 and 110

Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320

Erlich v Leifer & Anor [2015] VSC 499

Mason v Demasi [2009] NSWCA 227

Roberts v Westpac Banking Corporation [2015] ACTSC 397

Harold Luntz, Assessment of Damages for Personal Injury and Death (Butterworths Australia, 4th ed, 2002)

1. The plaintiff was born in 1994. On 20 December 2013, she was admitted to the Emergency Medical Unit (the EMU) at Canberra Hospital suffering from Salmonella poisoning. The EMU is essentially a transitional ward between the Emergency Department and formal admission. Its purpose is to allow observation of a patient, before deciding if the patient requires admission to a regular ward. Sometime after she was admitted to the EMU, a Mr Southwell was also given a bed. This was during the night.

2. Following his admission, Mr Southwell verbally abused all those around him and sexually assaulted the plaintiff. She alleges that she suffered mental harm as a result. She says the abuse and assault only took place because the defendant (Canberra Hospital and its staff), breached its duty of care to her. She says that Mr Southwell should not have been placed in the same ward, or if there was no option, he should have been supervised and she should have had the means to summon nursing staff if anything untoward occurred.

3. The defendant admits that it owed the plaintiff a duty of care but says that it did not breach that duty. In addition, it relies on s 110 of the Civil Law (Wrongs) Act 2002 (ACT) to excuse it from any finding of negligence.

4. Section 110 can be dealt with immediately and briefly. There was no evidence about the hospital's funding, its capacity to provide extra nursing staff, its capacity to provide emergency warning systems and its ability to provide resources to prevent assaults by patients upon other patients. In addition, there was no evidence that Mr Southwell could not have been placed in a bed in a different ward and there was no evidence that there was a shortage of beds available. There was evidence that the relevant ward was not full, whether or not it had six or nine beds.

5. I should add that even if there had been evidence concerning resources, it is unlikely to have assisted the defendant. The warnings to the defendant stemming from Mr Southwell's conduct upon and after his admission were such that he simply should not have been placed in the same ward as the plaintiff (as well as the other patients in the ward), absent the capacity to have close scrutiny of him or else an effective emergency response system.

6. An unusual aspect to this case is that the incident leading to Mr Southwell's admission to hospital was captured on film and later uploaded to YouTube. A USB containing the clip forms part of Exhibit A. What the clip shows in graphic clarity is the extent to which Mr Southwell was affected by, at least, alcohol. His behaviour, even though to some degree prompted by inconsiderate young onlookers, can only be described as bizarre. It is also consistent with the behaviour described by the plaintiff. His presentation at the hospital, even without the hospital having any records relating to him, should have raised a significant alarm about his potential behaviour.

7. There was in fact a significant history of Mr Southwell's attendances at the hospital. They are detailed in Exhibit A. Notably, they include similar presentations to 20 December 2013.

8. The plaintiff's description of what occurred in the hospital was challenged in a number of respects. However, there was no challenge to the core elements of what she said had been done to her by the assailant. It was never suggested to her that he had not been abusive, that he had not physically touched her and caused her bruising and he had not attempted to remove the cannula from her arm.

9. I note that Mr Southwell was charged and ultimately pleaded guilty to the sexual assault.

10. The bulk of the challenge to the plaintiff's evidence on liability included matters of detail arising from the hospital notes. My first observation is that these notes need to be treated with a good deal of caution for the reasons set out by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 and Mason v Demasi [2009] NSWCA 227.

11. Secondly, the evidence from the two nurses who were on duty was of limited value. This is particularly the case with Ms Joseph. The plaintiff was assigned to her. The unsatisfactory nature of her evidence arises from her almost total absence of memory of the evening. This is not surprising and I do not criticise her for being vague.

12. The evidence of Ms Paterson, taken in particular with her statement to the police, was of more assistance and highlighted the conduct of Mr Southwell. It is obvious that he was effectively a pest from the time he arrived at the hospital until he left. I do not think it really matters at what particular time he assaulted the plaintiff. It was never put to her that he had not assaulted her. It happened sometime in the early hours of 21 December 2013, when Mr Southwell should not have been in a position to harm any other patient. The warning signs were obvious, as conceded by Ms Paterson, even though his level of misbehaviour may have increased as time passed.

13. Thirdly, there is no doubt that there are a number of consistent complaints made by the plaintiff both to her mother and to other entities, such as the Oasis Youth Residential Service.

14. The report of the latter organisation includes this passage:

[A B] then slept after taking pain medication and she awoke to find that her hospital gown had been pushed up exposing her legs and underwear and the abusive and intoxicated male with his hands between her thighs and standing next to her head.

15. It is also significant that the plaintiff telephoned her mother at about 8:00 am and provided her with a consistent version of the events that had occurred through the night. I was initially concerned about the plaintiff's evidence that she had remained in bed for about three or four hours, having been assaulted, but not seeking out a nurse. However, her evidence that during this period Mr Southwell was sitting on his bed watching her allayed my concerns. I also note that the plaintiff's clinical notes indicate that there was no attendance upon her for three hours between 2:10 am and 5:10 am.

16. The plaintiff does not recall the 5:10 am visit but even if it did occur, the notes corroborate her version of being left alone for a significant period of time. This is against the background of her having been told that the ward would be monitored.

17. Both nurses gave evidence of the presence of a nurses' station, a desk, in the EMU (Exhibit 1). The two nurses were working only in this ward so that one would expect that Mr Southwell would not have been in a position to roam the ward, interfering with other patients. It is clear, however, that the nurses were not always at the desk, they took breaks and the notes suggest that there were substantial intervals between observations of patients. This in itself is an indication of a lack of proper attention having regard to the ongoing conduct of Mr Southwell.

18. As far as Mr Southwell is concerned, as already noted, he had attended the hospital on a number of occasions previously. Significantly, these occasions also included earlier examples of self-harm, including with a knife. On one occasion he presented with the knife still in his abdomen. The hospital notes in respect of his admission on 20 December 2013 are included in Exhibit A.

19. The ambulance records say he was aggressive at the scene. Once the ambulance officers were able to examine him, they found that he had been affected by alcohol. They were only able to transport him after intervention to make him more compliant. The notes in the Emergency Department record a suspicion of schizophrenia and note his frequent use of alcohol. The note at 1:20 am states:

Pt transferred from acute to EMU 3. Pt obs and circ obs attended to. Pt very loud and swearing - Pt told not to swear and to talk softly. Pt to be reviewed by Plastics in the a.m. for possible admission.

20. At 2:50 am this note appears in the EMU records:

Pt's IVC removed at request of Dr - Pt was verbally abusive towards Dr as Dr not happy to prescribe sleeping tablets.

Pt continues to swear and talk loudly and ask for sleeping tablets- pt has been told repeatedly to quiet down, to stop swearing and that the doctors aren't going to give him sleeping tablets.

22. Despite the observations made at 3:00 am, Mr Southwell was apparently not checked again until 6:30 am when this note was made:

Pt has refused obs and circ obs, pt is swearing, slurring his words, and becoming agitated. Pt has been drinking wine - pt states that it is water.

23. In relation to the buzzer, I think there probably was one attached to the bed or to the wall. I am not satisfied however, on the basis of the evidence from the two nurses that it was ever brought to the attention of the plaintiff or that it was in a position where it was easily accessible. Ms Paterson referred to the plaintiff as mostly being under the covers. This is consistent with fear on her part and also not being in a position where the buzzer was readily to hand.

24. In my view, the duty owed by the hospital to the plaintiff was to ensure that she would be treated in a safe environment, free from foreseeable dangers. Mr Southwell was a very foreseeable danger because of his history, his conduct on presentation at the hospital and his conduct after his admission and in particular in the ward. Mr Southwell should not have been in that ward and he should not have been so unsupervised that he was capable of freely molesting other patients.

25. Looked at in terms of s 43 of the Civil Law (Wrongs) Act 2002 (ACT), the risk of a person who was drunk and behaving in the manner of Mr Southwell causing harm to another patient if not separated from the ward was foreseeable. The risk was clearly not insignificant and a reasonable person would have taken precautions to avoid the risk. Mr Southwell's conduct from the very beginning raised a probability that harm might occur and that it could be serious. Although there was no evidence as to alternate accommodation for Mr Southwell, in my view he should not have been admitted into the ward, or at least should have been removed as soon as his conduct, and in particular his misconduct, became prevalent. This was a very short time after his arrival.

26. I do not think that s 44 is applicable. The negligence does not arise from the fact that the harm could have been avoided by taking different actions. It arises from exposing the patients in the ward to a foreseeably dangerous person.

27. In my view the hospital's negligence is clear. Accordingly, there will be judgment for the plaintiff.

28. The plaintiff claims damages under the following heads: general damages plus interest, past medical expenses, past economic loss plus interest, future economic loss, past and future loss of superannuation benefits, future medical expenses and aggravated damages. The defendant said that the plaintiff is not entitled to aggravated damages and her claim under the other heads is far too extensive.

29. The plaintiff clearly had some anxiety issues prior to her admission into hospital. They seem to have stemmed from difficulties at home, in particular arising from a mental illness suffered by her father and disputes between her parents. In addition, there had been harassment from a fellow student which went to the extent of stalking and blackmail. This obviously distressed the plaintiff. Its effects continued until the student, who was from another country, was deported.

30. While I think they are important and perhaps display a susceptibility to anxiety and perhaps even depression, the plaintiff's previous experiences do not dislodge the 'egg shell skull' rule and certainly cannot be said to indicate that she would, but for the hospital incident, have been in the same mental state as after the incident.

31. In my view the damages the plaintiff seeks are excessive. In saying this, I do not necessarily suggest that the plaintiff was exaggerating in her description of the effects of the events during the relevant night. It is the translation of those effects into monetary sums that I think has been overstated.

32. The damages suggested by the defendant are more realistic. Often a defendant will react to a plaintiff's figures by suggesting very low amounts with the intention of creating a range which provides a reasonable result somewhere near its midpoint. That has not occurred here. As will be seen below, I will adopt some of the defendant's suggestions.

33. I am satisfied that the plaintiff did suffer a significant Post Traumatic Stress Disorder (PTSD) and that it has and will affect her into the future, including her earning capacity. However, the plaintiff after an initial period, has returned to work and does seem to have improved in her capacity to deal with daily life. With adequate treatment, as suggested by the medical practitioners, her prognosis is reasonably good although she should still be compensated for some years into the future.

34. I generally accept the evidence of Dr Knox although to some degree tempered by him having an incorrect history with the result that when given a fuller history he suggested that the plaintiff's pre-accident condition might have already included an element of a Borderline Personality Disorder.

35. The defendant primarily relied on the views of Dr Saboisky and in particular his criticism of Ms Crichton, a psychologist, who had carried out psychometric testing on the plaintiff. Dr Saboisky was of the view that Ms Crichton had omitted an interpretation, albeit computer-generated, of the results of the testing which would have suggested that there was a degree of malingering on the plaintiff's part.

36. I prefer the views of Dr Knox on this point and his suggestion that the results indicate a "cry for help" consistent with one of the alternatives foreshadowed by the test results (Exhibit A). This view is also consistent with my impression of the plaintiff to the effect that she was not consciously exaggerating.

37. In addition, although Dr Saboisky felt the plaintiff had exaggerated, he nevertheless conceded that the plaintiff had suffered a PTSD. He also conceded that although the incident in a cafe some weeks after the injury was probably related to the Salmonella poisoning it might have been less severe if the PTSD was not in place.

38. The plaintiff asked for $300,000 in general damages. She relied for broad comparison on Roberts v Westpac Banking Corporation [2015] ACTSC 397 and Erlich v Leifer & Anor [2015] VSC 499. In each of these cases the respective plaintiffs had suffered a PTSD and were awarded $300,000 in general damages. It takes but a short reading of the facts of each case to see that the injuries suffered by the plaintiffs were significantly more severe than the plaintiff in this case. With respect, I do not regard them as comparable.

39. As already stated, I think the plaintiff has suffered a genuine PTSD which will continue to affect her for some time. I think it reasonable to allow future medical expenses so that she can have the treatment which will assist in her recovery. I have generally approached the damages on the basis that the plaintiff will continue to be affected for about another 10 years. On this basis, I assess general damages at $90,000. I allow interest for 4.13 years at 2% on $30,000. This is $2,478.

40. Past medical expenses were agreed at $2,600.83.

41. In relation to the future I think the plaintiff should have the psychiatric treatment suggested by Dr Knox as well as the capacity to afford the medication that she is currently taking. I will allow four visits to a psychiatrist per year at $500 per visit together with medication at $40 per week. On the 3% tables, the resulting figure is $35,448.92. I will increase this figure to $37,500 to allow for occasional visits to the general practitioner.

42. The plaintiff was earning about $300 per week before the incident. She was intending to go to university in 2014 but also to maintain some casual work. She did not return to work for about 18 months. She then commenced employment, earning more than she had been prior to December 2013. My initial thought was to allow past economic loss at $300 per week until June 2015. This would have produced a figure in the order of $22,500. This is less than the figure suggested by the defendant. I do not think it appropriate in a personal injury matter to award a figure outside the range suggested by the parties. Accordingly, I will adopt the defendant's figure of $40,000 for past economic loss.

43. I do note that the defendant's figure was based on the plaintiff never attending university. I think she would have done so, notwithstanding that the bridging course was not yet completed. I accept the reasons she gave for not having started the degree.

44. Interest on $40,000 at 4.5% for 4.13 years is $7,434. The plaintiff was not receiving superannuation benefits when she was working prior to December 2013 and she may not have received them had she carried on working, full-time or part-time. However, again adopting the defendant's suggestion, I allow $4,400.

45. I agree with the general approach taken by the plaintiff that future economic loss can only be awarded on a buffer basis. However, I think the suggested figure by the plaintiff is too high and the defendant's figure is too low. The plaintiff is back at work. Had she commenced university she would still be undertaking the course and not earning much except on a part-time basis. She would then have slowly graduated, whether as a lawyer or in some other capacity, to a more substantial wage.

46. It is still open to the plaintiff to pursue a university course and then a professional career, although I think as time passes this possibility will become less likely. However, it is a factor that must be taken into account in the assessment of the buffer. I think $75,000 is appropriate.

47. Lost superannuation benefits at 11% are $8,250.

48. The plaintiff claimed aggravated damages based firstly on the nature of the conduct of the hospital in allowing Mr Southwell to be in the ward and secondly on the defendant's attitude to the proceedings, in particular in putting the plaintiff to proof of Mr Southwell's activities.

...where the defendant has acted, either in committing the tort or thereafter, with contumelious disregard of the plaintiff's rights, in any insulting or high-handed way or with malice. (Assessment of Damages for Personal Injury and Death, Luntz, 4th Edition at paragraph 1.7.10)

50. As clear as I think the defendant's negligence was, I do not regard it as reaching the degree necessary to trigger an entitlement to aggravated damages. While I think liability should probably have been admitted, there is nothing to suggest that the conduct of the defendant's case had any element of malice or being high-handed. Accordingly, I reject the request for aggravated damages.

51. The following table is a summary of the damages I have awarded:

(a) Judgment for the plaintiff in the sum of $267,662.83.

(b) The defendant is to pay the plaintiff's costs of the proceedings.

53. I will hear the parties in the event that an alternate costs order is sought.

I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.